State Agencies Should Prepare for a War of Attrition on Enforcement Measures

By W.D. Reasoner on June 14, 2012

A recent Associated Press article indicated that, notwithstanding the pending Supreme Court decision in the lawsuit the federal government filed against the state of Arizona to enjoin its co-enforcement of immigration laws — key facets of which are likely to be upheld — many legal analysts believe that various open-borders and immigrant advocacy groups intend to continue filing lawsuits based on the Arizona statute, primarily the portion that authorizes state and local police to question suspects as to their immigration status based on articulable facts.

How curious that these self-same groups, so vocal in demanding and supporting the lawsuit, and so strident in their "friend of the court" filings, suddenly feel the need to downplay the significance of the Supreme Court case now that things don't seem to be going in their direction. What will be the probable basis of new lawsuits? Why, racial profiling of course. According to the AP report, Linton Joaquin, general counsel for the National Immigration Law Center (NILC), helpfully explains that, "All the court is going to decide is the pre-emption issue, [b]ut we think this law basically requires racial profiling by mandating that officers detain and investigate people that they have reasonable suspicions of being unauthorized."

Well, it's true that, as explained in the article, the federal government didn't raise the issue of racial profiling in its complaint or motions. But I am morally certain they would have if they thought they could — this administration would be delighted if it could impose a moratorium on all immigration enforcement actions at every level of government — but even they recognized that there was not a scintilla of evidence that the statute requires anything remotely like racial profiling. In fact, when the Solicitor General attempted to raise the specter of profiling during oral argument before the Supreme Court, he was chastised by a number of justices, including Sonia Sotomayor, and not simply because the issue wasn't among the federal government's claims in its filings on the case.

I am so appalled by the revelation of this intended tactic by NILC, the American Civil Liberties Union, and others, most particularly because of its unspoken, but nonetheless obvious, underlying assumptions, that I can hardly express myself. It is so wrong on so many levels.

First, it seems to rely on an assumption that nearly all of the law enforcement officers in Arizona are non-Hispanic whites who, at the first opportunity, are going to engage in a pattern and practice of pretextual police stops so that they can focus on enforcing immigration laws rather than doing so only as a collateral effect of their official duties. Second, it also seems to rely on the assumption that those Hispanic, Native American, or other minorities who are part of the state and local constabulary have no interest in enforcing immigration law (notwithstanding their oaths to uphold the Constitution and laws of the United States and the state of Arizona), and further, that they are willing to stand idly by while their white colleagues engage in unlawful behavior. What about this line of reasoning isn't repugnant to one and all?

But finesse doesn't appear to be in the shared dictionary of NILC and its partners. The article makes manifest what one suspected all along: This matter isn't, and was never, about exploring the boundaries of what is lawful state action in the immigration arena; rather, it is about certain groups who are determined to impede effective immigration enforcement at all costs, no matter what the consequences to the citizenry, particularly in border states.

One also suspects that they have publicized their plans with the deliberate intention of chilling state and local law enforcement agencies' willingness to implement the state statute, presuming it is upheld by the Court, through fears of long and costly litigation that could drain coffers already strained by years of a stale economy and withered tax revenues.

My advice to those agencies is this: Don't wait on the outcome of the federal lawsuit, nor the initiation of another. Begin now. Ensure that your officers enforce their duties fairly and methodically. Provide them training in what things constitute "articulable facts" for immigration purposes. Provide an avenue to investigate complaints of unfair conduct. And, perhaps most importantly, collect statistical data that allow you to develop historical baselines of your agency's arrests and detentions by race and ethnicity, including — most specifically including — traffic violations. These data will be critically important in defending against lawsuits alleging pretextual stops.

If sued, defend yourselves vigorously. If you have done your homework, chances are very strong that you will prevail. When you do, demand that the plaintiffs bear the burden of paying your litigation costs, and do not hesitate to ask the court to impose sanctions against the plaintiff's attorneys for contumelious behavior, which surely includes the filing of frivolous lawsuits that eat up scarce judicial resources. After all, it looks to be a long war of attrition in the courts, and there is no reason that advocacy groups should not be forced to realize that they, too, have much to lose.